Lamkin v. State, 20563.

• Decision Date: 31 January 1940
• Docket Number: No. 20563.,20563.
• Citation: 136 S.W.2d 225
• Parties: LAMKIN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 225

136 S.W.2d 225

LAMKIN v. STATE.

No. 20563.

Court of Criminal Appeals of Texas.

January 31, 1940.

Appeal from District Court, Hall County; A. J. Fires, Judge.

John Lamkin was convicted of cattle theft but sentence was suspended and he was subsequently convicted of a felony charge of driving an automobile on a public highway while intoxicated and the suspension of the sentence in the former conviction was revoked and defendant was sentenced to four years' confinement in the penitentiary, and he appeals.

Reversed and remanded.

Mahan & Broughton, of Childress, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

Montague & Fannin and Joe G. Montague, both of Fort Worth, Amici Curiæ for Texas & Southwestern Cattle Raisers Ass'n.

BEAUCHAMP, Judge.

At the September term, 1935, of the District Court of Hall County, the appellant was convicted of cattle theft, and his punishment assessed at a term of four years in the penitentiary with the sentence suspended. In February, 1938, he was convicted upon a felony charge of driving an automobile on a public highway while intoxicated. The latter sentence became final, and the District Attorney filed a motion to set aside the suspension of the sentence in the former conviction, and upon the hearing the same was revoked and the appellant duly sentenced to four years' confinement in the penitentiary. From this sentence appellant brings this appeal.

On the hearing to have this sentence revoked appellant sought to have the judgment of conviction set aside on the ground of the insufficiency of the evidence upon which he was convicted. At the time of the hearing and for the appeal he attempted to secure a transcript of the testimony in his first trial, but was advised by the court reporter that the notes had been destroyed and that he would be unable to make a full and complete transcript. One of the attorneys in the original case had died, and the other one, with the District Attorney, made a statement of facts which was concurred in by two of the jurors. Appellant, it seems, would not agree to this statement of facts and contends that the statement made is incorrect. The trial judge is unable to prepare one from memory. Appellant now presents that he has been deprived of a statement of facts without fault on his part and after due showing of diligence.

The first question for our consideration is whether or not the appellant has a right of appeal after the revocation of the suspension of his sentence and after a final judgment had been entered in his case. This court has consistently held that there is no appeal from a suspended sentence because it is not a final judgment from which an appeal may be taken. As shown by the authorities hereinafter quoted, it has been as consistently held that when a suspended sentence is revoked, an appeal will lie to this court to review the original trial in the same manner as if there had been no suspended sentence and an appeal had been perfected at the time of the entry of the judgment. The applicable statute, Art. 779, C.C.P., reads as follows: "Upon the final conviction of the defendant of any other felony pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction."

Though the suspended sentence law has been in effect since 1913, and there have been many appeals to this court after the suspended sentence was revoked, we are again called upon to pass upon the question of whether or not an appeal will lie under such conditions.

In Bierman v. State, 73 Tex.Cr.R. 284, 164 S.W. 840, 841, there was an appeal from a conviction with a suspended sentence. The date of the opinion of this court was February 25, 1914. The motion for rehearing, on March 18, 1914, sustained the original opinion. After denying him the right to have his case considered on appeal, the court said: "If the court should hereafter, for any reason, call him before the court and pronounce sentence, his right of appeal would then accrue, and he could then prosecute an appeal to this court, but not until then."

The Bierman case is specifically approved in Ex parte Lawson, 76 Tex.Cr.R. 419, 175 S.W. 698, 699, from which we quote the following: "In Bierman v. State , 164 S.W. 840, we held that there was no right of appeal from a judgment suspending the sentence until the court set aside the suspension of the sentence, but that the right of appeal accrued whenever the court set aside the order suspending the sentence."

In Gallier v. State, Jan. 12, 1916, 78 Tex. Cr.R. 534, 182 S.W. 306, the appellant, upon receiving a suspended sentence, filed a motion for new trial, and when it was overruled, gave notice of appeal. This court said: "The trial court should not have permitted notice of appeal to have been given; for, under the suspended sentence law, an accused cannot appeal from the conviction, and can only do so when proper sentence is later, if at all, pronounced against him. Bierman v. State, 73 Tex.Cr.R. 284, 164 S.W. 840."

In Ex parte Beland, 94 Tex.Cr.R. 614, 252 S.W. 529, 530, dated June 13, 1923, Judge Hawkins wrote: "Relator could not appeal from the judgment of conviction wherein his sentence was suspended so long as the suspension was effective, because no sentence had been pronounced and the judgment was not final; but when the court revoked the suspension on July 28, 1922, and pronounced sentence upon relator, the judgment then became a final judgment and the right of appeal at once accrued, and this was the legal, adequate, and statutory remedy. Article 856, C.C.P.; Bierman v. State, 73 Tex.Cr.R. 284, 164 S.W. 840; Ex parte...